09/12/2020
The Difference Between Sub-Contractors and Employees
A 3 Part Subjective Analysis
There are facts and circumstances most commonly used by the Courts (known as ‘Common law’) to determine the difference between an employee and sub-contractor. It’s a 3 part subjective analysis and some facts may indicate that a ‘worker’ is an employee, while other factors indicate that the worker is actually a sub-contractor. Thus, you need to weigh the issues with your tax or legal advisor to make the right decision and what path you’re going to take. These 3 factors or categories are as follows:
1. Behavior of the ‘worker’ in relationship to your direction and guidance. Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial terms between you and the ‘worker’. What are the business aspects of the financial relationship? Is the worker paid hourly or weekly? Does it look more like pay that an employee would receive? Do you reimburse for expenses and provide the work space, tools and supplies?
3. Type of Relationship in writing AND Understanding. Would your ‘worker’ consider themselves an employee? Could they be fired any particular day? Do you have a sub-contractor agreement in place that clearly indicates the worker is an independent contractor?
The IRS’s Position
The Internal Revenue Service define an employer/employee relationship as one in which the employer controls the workspace, the hours worked, the equipment to be used and directs the daily and weekly activities of the worker.
A Sub-contractor by contrast is one that typically carries their own tools, supplies, bills for their time and/or services, controls their hours worked and serve multiple customers or clients and aren’t supervised or directed by one employer in particular. To help explain these definitions further and provide examples, the IRS created an extremely helpful web page with a number of resources titled